Affidavit: Court cannot convert complaint into a 156(3) cr.p.c petition without following procedures

Appeal

2. The present appeals challenge the four judgments and orders dated 22nd January 2021, passed by the High Court of Karnataka at Bengaluru, thereby dismissing the criminal petitions filed by the present appellants under Section 482 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.).

Complaint filed for cheating

6. The respondent No. 2, thereafter filed a complaint dated 10th September 2019, with Tilak Nagar Police Station, Jayanagar, Bengaluru, against the appellants, thereby making allegations of cheating. Thereafter, following a gap of almost one year, the respondent No. 2 filed Private Complaint being P.C.R. No. 12445/2019 on 18th September 2019, before the Court of II Additional Chief Metropolitan Magistrate, Bangalore.

Magistrate directed investigation under section 156(3) Cr.P.C based on the complaint

9. The II Additional Chief Metropolitan Magistrate, at Bangalore on 6th December 2019, passed the order as under:

“The Complainant has filed the present private complaint under section 200 of CrP.C., against the accused Nos. 1 to 3 for the alleged offences punishable under section 420,465,468,464 and 120B of IPC. In the complaint, the complainant has made serious allegations against the accused persons. Therefore, it appears this court that, it is just and proper to refer the matter to the jurisdiction police for investigate and submit report. Accordingly, the matter is referred to PSI of Jayanagar Police Station under section 156 (3) of CrP.C., for investigation and submit report by 26.02.2020.”

10. On the basis of the same, a First Information Report (hereinafter referred to as FIR) No. 258/2019 came to be registered at Jayanagar Police Station Bengaluru City on 18th December 2019, for the offences punishable under Sections 120B, 420, 471, 468, 465, of the IPC. Three similar FIRs came to registered against the appellants on different dates in December 2019.

Submission that the Learned Magistrate passed an order u/s 156(3) Cr.P.C without supported by the affidavit

12. It was submitted that, the Magistrate was required to apply his mind before passing an order under Section 156 (3) of the Cr.P.C. It was further submitted that, unless an application under Section 156 (3) of the Cr.P.C. was supported by an affidavit duly sworn by the complainant, the learned Magistrate could not have passed an order under the said provision.

Priyanka Srivastava and Another v. State of Uttar Pradesh and Others was not followed

25. This court has clearly held that, a stage has come where applications under Section 156 (3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

26. This court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.

Procedures not followed prior to file petition u/s 156(3) Cr.P.C

27. This court has further held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

28. In the present case, we find that the learned Magistrate while passing the order under Section 156 (3) of the Cr.P.C., has totally failed to consider the law laid down by this court.

29. From the perusal of the complaint it can be seen that, the complainant/respondent No. 2 himself has made averments with regard to the filing of the Original Suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra), and has dismissed the petitions by merely observing that serious allegations are made in the complaint.

30. We are, therefore, of the considered view that, continuation of the present proceedings would amount to nothing but an abuse of process of law.

Gist of the case

A complaint u/s 200 Cr.P.C (also see sec 190(1)(a) Cr.P.C) was filed before the Learned IInd Additional Chief Metropolitan Magistrate, at Bangalore on 6th December 2019. Since the alleged offences in the complaint are punishable under section 420, 465, 468, 464 and 120­B of IPC, the Learned Magistrate instead of taking cognizance on the complaint has referred the same u/s 156(3) Cr.P.C for investigation by the police.

Now, that was challenged as if the Learned Magistrate has not applied judicial mind inasmuch as the complaint does not supported by the affidavit of the complainant.

Following the Hon’ble Apex Court Judgment Priyanka Srivastava and Another v. State of Uttar Pradesh and Others reported in (2015) 6 SCC 287, the Hon’ble Supreme Court has quashed all the FIRs registered based on the direction u/s 156(3) Cr.P.C by the Learned Magistrate.

Parties

BABU VENKATESH AND OTHERS …APPELLANT (S) VERSUS STATE OF KARNATAKA AND ANOTHER …RESPONDENT(S) – CRIMINAL APPEAL NO. 252 OF 2022 – FEBRUARY 18, 2022.

Source: Download

5732_2021_46_1501_33528_Judgement_18-Feb-2022.pdf (sci.gov.in)

Further study

N.Amsaveni vs R.Loganathan on 8 August, 2019 – Crl.O.P.No.15729 of 2019 -Madras high court – 08.08.2019.

Fir can be filed even a complaint or petition u/s 156(3) Cr.P.C is pending on same set of facts

Affidavit – Magistrate cannot take proof affidavit except N.I Act